Dowkin et al v. Honolulu Police Department et al

Filing 167

ORDER PARTIALLY GRANTING AND PARTIALLY DENYING DEFENDANTS' MOTION FOR DISMISSAL OF SECOND AMENDED COMPLAINT 145 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 9/2/11. (emt, )CERTIFICATE OF SERVICEParticipants re gistered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SERGEANT SHERMON DEAN DOWKIN,
OFFICER FEDERICO DELGADILLO
MARTINEZ, JR. AND OFFICER
CASSANDRA BENNETT-BAGORIO,

)
)
)
)
)
Plaintiffs,
)
)
V.
)
)
THE HONOLULU POLICE
)
DEPARTMENT, THE CITY AND
)
COUNTY OF HONOLULU, FORMER
)
CHIEF OF POLICE BOISSE CORREA, )
CURRENT CHIEF OF POLICE LOUIS )
)
KEALOHA, ASSISTANT CHIEF
MICHAEL TAMASHIRO, MAJOR
)
KENNETH SIMMONS, MAJOR JOHN
)
MCENTIRE, CAPTAIN NYLE DOLERA, )
LIEUTENANT MICHAEL SERRAO,
)
LIEUTENANT DAN KWON,
)
LIEUTENANT WILLIAM AXT,
)
SERGEANT WAYNE FERNANDEZ,
)
SERGEANT RALSTON TANAKA,
)
OFFICER KASHIMOTORO, PAT AH
)
LOO AND Does 1-100,
)
)
Defendants.
)
)

CIVIL NO. 10-00087 SOM/LEK
ORDER PARTIALLY GRANTING AND
PARTIALLY DENYING DEFENDANTS’
MOTION FOR DISMISSAL OF
SECOND AMENDED COMPLAINT

ORDER PARTIALLY GRANTING AND PARTIALLY DENYING
DEFENDANTS’ MOTION FOR DISMISSAL OF SECOND AMENDED COMPLAINT
I.

INTRODUCTION.
On June 24, 2011, Plaintiffs Sergeant Shermon Dean

Dowkin, Officer Federico Delgadillo Martinez, Jr., and Officer
Cassandra Bennett-Bagorio of the Honolulu Police Department
(“HPD”) filed their Second Amended Complaint.

See ECF No. 139.

These Plaintiffs allege, among other things, race and sex
discrimination.

Defendants have filed a motion to dismiss this

Second Amended Complaint.

See ECF No. 145.

This court partially

grants and partially denies Defendants’ Motion for Dismissal of
the Second Amended Complaint.
II.

BACKGROUND FACTS.
The parties are familiar with the background of this

case.

The court includes here only the background facts relevant

to this motion.
Sergeant Shermon Dean Dowkin (“Dowkin”), Officer
Federico Delgadillo Martinez, Jr. (“Delgadillo”), and Officer
Cassandra Bennett-Bagorio (“Bennett-Bagorio”) (hereinafter
referred to collectively as “Plaintiffs”) were and are still
employed by HPD.

See Second Am. Compl. ¶¶ 4, 5, ECF No. 139.

Dowkin and Delgadillo have and are currently serving in HPD’s
Regional Patrol Bureau District 4, First Watch.

See id.

Dowkin

is a male Field Sergeant and has been employed with HPD since
1988.

Id. ¶ 4.

Delgadillo is a male Motorized Metropolitan

Police Officer and has been an HPD employee since 1998.

Id. ¶ 5.

Bennett-Bagorio is a female Motorized Metropolitan Police Officer
and has been with HPD since 1997.

Id. ¶ 6.

Dowkin is allegedly

the only African-American supervisor, and Delgadillo is allegedly
the only Mexican-American officer in the First Watch of District
4.

Id. ¶ 28.
From November 2003 to August 2008, Dowkin supervised a

Traffic Enforcement Team, also known as the Driving Under the

2

Influence Team (“DUI Team”).
member of the DUI Team.

See id. ¶ 25.

See id.

Delgadillo was a

The DUI Team was responsible

for enforcing traffic laws on the Windward Side of Oahu during
the First Watch hours of 10:00 p.m. to 7:00 a.m.

See id.

Plaintiffs allege that the DUI Team makes more stops than other
patrol officers on a nightly basis.

See id.

Dowkin and Delgadillo allege that, between 2003 and
2008, their supervisors and fellow officers conspired not to
provide them with protective “cover” or “backup” when they were
arresting people in the field and directly ordered others to
similarly refuse to provide backup to them.

See id. ¶¶ 24, 27.

Dowkin and Delgadillo’s ongoing requests for assistance were
allegedly “routinely ignored,” because, Dowkin and Delgadillo
claim, Defendants were “motivated by racial prejudice.”
¶ 29.

Id.

Plaintiffs claim that this was designed or accomplished

with a reckless disregard for their physical safety and that,
when they complained about race discrimination, Defendants
retaliated against them.

Id.

HPD’s standard operating procedure allegedly required
backup support by the nearest officer to any officer radioing
that he or she was making a solo traffic stop at night.
¶ 27.

See id.

The procedure allegedly ensured that the arresting

officer’s physical safety and ultimate prosecution of offenders
were not jeopardized.

See id.

Plaintiffs allege that all

3

District 4 patrol officers were obligated to respond immediately
to requests for cover and to provide backup as part of their
normal police responsibilities.

See id.

On August 7, 2008, Dowkin delivered a written complaint
alleging race discrimination by HPD to Defendant Major Simmons,
Commander of District 4.

Id. ¶ 29.

Dowkin allegedly spoke with

Major Simmons and explained the circumstances regarding what he
considered disparate treatment.

Id.

Major Simmons allegedly

took no action in response to the complaint.

Id.

Plaintiffs

further allege that, although the filing of the complaint was
protected activity, retaliation immediately commenced.

Id.

Dowkin and Delgadillo, having been on special duty
assignment with the DUI team, returned to the First Watch in
2008.

See id. ¶ 31.

Plaintiffs allege that “for the most part”

officers assigned to special duty assignments do not lose their
seniority benefits when they return to First Watch.

Id.

When

Dowkin and Delgadillo returned to First Watch from the DUI team,
however, they were allegedly demoted to “junior officer status.”
Id.
On October 14, 2008, Bennett-Bagorio was allegedly
summoned by HPD Human Resources to provide testimony regarding
Dowkin and Delgadillo’s race discrimination complaint.

Id. ¶ 32.

Bennett-Bagorio’s testimony allegedly supported Dowkin and
Delgadillo’s claims of race discrimination and of the purported

4

lack of cover on traffic stops.

Id.

Bennett-Bagorio alleges

that, as a result of her testimony and her gender, Defendants
retaliated against her.

Defendants allegedly failed to provide

her with backup on traffic stops, denied her critical training,
humiliated her in front of her peers, and isolated her so she
lacked normal workplace social contact.

Id.

Dowkin and Delgadillo filed a charge with the United
States Equal Opportunity Commission Office (“EEOC”) in Honolulu
and with the Hawaii Civil Rights Commission (“HCRC”) on November
10, 2008.

See id. ¶ 33(CCC).

Bennett-Bagorio filed a charge of

gender discrimination and retaliation with the EEOC and HCRC on
April 29, 2009.

See id. ¶ 33(NNN).

On November 30, 2010, this court issued an Order
Partially Granting and Partially Denying Defendants’s Motion for
Partial Dismissal of Plaintiffs’s First Amended Complaint.
ECF No. 43 (“Order”).

See

On June 24, 2011, Plaintiffs filed their

Second Amended Complaint.

See ECF No. 139.

This Second Amended

Complaint differs from the First Amended Complaint in only
limited respects.

It adds two new paragraphs that allege failure

to provide backup to Plaintiffs on October 11, 2010, and October
18, 2010, see Second Am. Compl. ¶¶ 33(VVV), 33(WWW).

It also

includes at the end of each state law cause of action an
allegation that “[t]he individual Defendants, in perpetrating the
foregoing, were motivated by malice and not by an otherwise

5

proper purpose.”

See id. ¶¶ 50, 58, 62, 69, 77, 80.

However,

for the most part, the two Complaints have a great deal in
common.
On July 8, 2011, Defendants filed a motion to dismiss
this Second Amended Complaint.

See ECF No. 145 (“Mot.”).

On

August 15, 2011, Plaintiffs filed their untimely Opposition after
court staff called to inquire about the late filing.

Plaintiffs’

counsel explained that he and opposing counsel had agreed to
extend briefing deadlines without notifying the court.
ECF No. 159.

See also

The court issued a minute order noting that this

practice violated Local Rule 6.2(a), which prohibits the
extending of any briefing deadline when parties have an existing
hearing date without previous discussion with the judge.
No. 156.

Defendants filed their Reply on August 17, 2011, in

accordance with the court’s minute order.
III.

See ECF

See ECF No. 158.

STANDARD OF REVIEW.
Rule 12(b)(6) of the Federal Rules of Civil Procedure

provides for dismissal of a complaint, or a claim therein, when a
claimant fails “to state a claim upon which relief can be
granted.”

Dismissal under Rule 12(b)(6) may be based on either:

(1) lack of a cognizable legal theory; or (2) insufficient facts
under a cognizable legal theory.

Balistreri v. Pacifica Police

Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.

6

1984)).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

That is, a

plaintiff must “plead[] factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”

Ashcroft v. Iqbal, ___ U.S. ___, 129 S.

Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556, 570 (2007)); see Evanns v. AT&T Corp., 229 F.3d
837, 839 (9th Cir. 2000).
Under Rule 12(b)(6), the court’s review is generally
limited to the contents of the complaint.

See Marder v. Lopez,

450 F.3d 445, 448 (9th Cir. 2006); Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

All allegations of

material fact are taken as true and construed in the light most
favorable to the nonmoving party.
1068, 1072 (9th Cir. 2005).

See Knievel v. ESPN, 393 F.3d

Conclusory allegations and

unwarranted inferences, however, are insufficient to defeat a
motion to dismiss.

See Sanders v. Brown, 504 F.3d 903, 910 (9th

Cir. 2007); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973
(9th Cir. 2004).
In particular, the court should “identify[] pleadings
that, because they are no more than conclusions, are not entitled
to the assumption of truth.”

Iqbal, 129 S. Ct. at 1950.

7

The

court should disregard “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements.”
at 1949.

Id.

After eliminating such unsupported legal conclusions,

the court must identify “well-pleaded factual allegations,” which
are assumed to be true, “and then determine whether they
plausibly give rise to an entitlement to relief.”
IV.

Id. at 1950.

ANALYSIS.
As a preliminary matter, the court notes that the

Second Amended Complaint is unduly long and confusing and in some
instances reiterates claims that were withdrawn or dismissed as
defective without curing the identified defects.

The court

strikes all references to reckless endangerment, to bad faith
breach of employment contract, and to claims arising under the
Hawaii constitution, and strikes HPD as a Defendant, in keeping
with this court’s earlier Order.

In addition, Plaintiffs have

agreed to dismiss all Doe Defendants from this lawsuit.

See

Opp’n at 3.
A.

Count I (Title VII) and Count III (Section 378-2)
Against the City

Plaintiffs appear to assert disparate treatment,
retaliation, and hostile work environment claims against the City
under Title VII in Count I and under Hawaii Revised Statutes 3782 in Count III.

The court denies the motion to dismiss with

respect to all three theories.
The elements of a disparate treatment claim under Title
8

VII are (1) membership by a plaintiff in a protected class; (2)
satisfaction by the plaintiff of the qualifications for the
position in issue; (3) an adverse employment action; and (4) more
favorable treatment of similarly situated individuals outside the
plaintiff’s protected class.

See Davis v. Team Elec. Co., 520

F.3d 1080, 1089 (9th Cir. 2008); see also Nicholson v. Hyannis
Air Serv., Inc., 580 F.3d 1116, 1123 (9th Cir. 2009).

Under

section 378-2 of Hawaii Revised Statutes, a plaintiff must show
similar elements.

Furukawa v. Honolulu Zoological Soc’y, 85 Haw.

7, 12-14, 936 P.2d 642, 648-50 (1997).
For Title VII purposes, Plaintiffs all belong to a
protected class.

Dowkin is an African-American male, Delgadillo

is an Mexican-American male, and Bennett-Bagorio is a Caucasian
female.

See, e.g., Nicholson v. Hyannis Air Serv., Inc., 580

F.3d 1116, 1123 (9th Cir. 2009) (women as protected class);
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th
Cir. 2006) (African-Americans as protected class); Cordova v.
State Farm Ins. Companies, 124 F.3d 1145, 1148 (9th Cir. 1997)
(Mexicans as protected class).

With respect to the second

element, there appears to be no dispute that all Plaintiffs are
qualified for their positions, as they allege that they remain in
them.

See Second Am. Compl. ¶¶ 4-6.

Plaintiffs also

sufficiently plead that they were subject to an adverse
employment action in not receiving backup.

9

See generally ¶ 33.

Sergeant Dowkin and Officer Delgadillo further allege that they
lost their seniority status and were demoted to “junior officer
status” when they returned to First Watch from the DUI team.
id. ¶ 31.

See

Officer Bennett-Bagorio claims that she was denied

critical training that would have increased her income and
enhanced her promotion opportunities.

See id. ¶ 32.

Plaintiffs

thus appear to sufficiently plead the first three elements of a
prima facie disparate treatment claim.
Plaintiffs also adequately plead the fourth element,
which concerns “similarly situated” individuals outside their
protected class who were treated more favorably.
Second Am. Compl. ¶¶ 31, 32, 33(III).

See, e.g.,

Plaintiffs claim that, for

the most part, officers who were assigned to the DUI Team did not
lose their seniority status when they returned to First Watch.
See id. ¶ 31.

They further allege that they had to comply with

“petty and arbitrary orders . . . which were not required of
other officers.”

See id. ¶ 33(X); see also id. ¶ 24 (“no other

officers are held to the same standards”).

Officer Bennett-

Bagorio was allegedly denied participation in an intoxilyzer test
class and her slot was given to a male officer.
¶ 33(III).

See id.

At the hearing, Plaintiffs pointed to Paragraphs 24

and 33(KKK) as pleading additional facts that go to the fourth
element of a prima facie discrimination claim.

This court

questions whether Paragraph 33(KKK) pleads facts regarding

10

similarly situated individuals; it alleges that Sergeant Dowkin
and Delgadillo were falsely accused of having sold tamales while
on duty.

See id. ¶ 33(KKK).

Nevertheless, viewing the facts in

the light most favorable to Plaintiffs, the court finds the
allegations regarding similarly situated individuals sufficient.
The court concludes that Plaintiffs adequately allege a disparate
treatment claim under Title VII and section 378-2 of Hawaii
Revised Statutes in their Second Amended Complaint.
The court also finds sufficient the allegations going
to claims of retaliation and a hostile work environment under
Title VII and section 378-2 of Hawaii Revised Statutes.
The elements of a prima facie case of retaliation under
Title VII are (1) engagement by a plaintiff in a protected
activity; (2) an adverse employment action; and (3) a causal link
between the protected activity and the adverse employment action.
Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006).

Under

Hawaii law, a plaintiff must establish similar elements.

A

plaintiff must show that first, he or she either opposed a
practice forbidden by Hawaii law, or filed a complaint,
testified, or assisted in any proceeding respecting a prohibited
discriminatory practice; second, that the plaintiff’s employer
discriminated against the plaintiff; and third, that there is a
causal link between the protected activity and the adverse
action.

Schefke v. Reliable Collection Agency, Ltd., 96 Haw.

11

408, 425-26, 32 P.3d 52, 69-70 (2001).
The Second Amended Complaint alleges that Dowkin and
Delgadillo engaged in protected activity when filing a written
complaint of racial discrimination with Major Simmons.
Second Am. Compl. ¶ 33(QQ).

See

Complaints to a supervisor about

unlawful employment actions may constitute protected activity.
See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212
F.3d 493, 506 (9th Cir. 2000) (noting that the plaintiff’s
informal complaints to her supervisor about his alleged sexist
behavior constituted protected activity); Knox v. City of
Portland, 543 F. Supp. 2d 1238, 1248 (D. Or. 2008) (“Informal
complaints to a supervisor constitute protected activity in a
retaliation claim” because the complaints essentially oppose an
unlawful employment practice).
The pleading further alleges that, two weeks after the
filing of the discrimination complaint, one or more Defendants
allegedly caused Dowkin and Delgadillo’s DUI Team to be
disbanded, depriving them of overtime income and causing them to
lose their seniority status.

See Second Am. Compl. ¶ 33(RR).

As

pled, Plaintiffs adequately allege an adverse employment action.
“[A]n action is cognizable as an adverse employment action if it
is reasonably likely to deter employees from engaging in
protected activity.”

See Elvig v. Calvin Presbyterian Church,

375 F.3d 951, 965 (9th Cir. 2004) (citations omitted).

12

For the third element, Dowkin and Delgadillo allege
that the adverse employment actions were “in obvious retaliation
for their opposition to illegal racial discrimination.”
See Second Am. Compl. ¶ 33(RR).

They further plead that

Defendants retaliated “because Plaintiffs had complained to HPD
about or otherwise opposed the illegal race and gender
discrimination and retaliation.”

See Second Am. Compl. ¶ 27.

Officer Bennett-Bagorio also sufficiently pleads a
claim for retaliation.

On February 20, 2009, Officer Bennett-

Bagorio allegedly provided testimony supporting Sergeant Dowkin
and Officer Delgadillo’s claims of racial discrimination and the
failure to provide cover during traffic stops.

See Second Am.

Compl. ¶ 32; Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994)
(explaining protected activity as “protest[ing] or otherwise
oppos[ing] unlawful employment discrimination directed against
employees protected by Title VII”).

Officer Bennett-Bagorio

alleges that she suffered adverse employment action in the form
of failure to receive backup, denial of critical training,
isolation from normal workplace social contact, and humiliation
in front of her peers.

See Second Am. Compl. ¶ 32.

These

actions were allegedly the “direct result” of her “opposition to
the racial discrimination . . . perpetrated against Sergeant
Dowkin and Officer Delgadillo.”

See id.

Bennett-Bagorio also

says she received a “false and negative performance evaluation,”

13

allegedly in “retaliation for her opposition to the racial
discrimination perpetrated against Sergeant Dowkin and for filing
a written protected complaint of discrimination and retaliation
with HPD on February 20, 2009.”

See id. ¶ 33(MMM).

Just as Counts I and III sufficiently allege
retaliation, they sufficiently allege a hostile work environment.
The elements of a Title VII hostile work environment claim are
(1) the subjecting of a plaintiff to verbal or physical conduct
of a harassing nature, (2) the unwelcome nature of the conduct,
and (3) a level of conduct that was “sufficiently severe or
pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.”

Kortan v. Cal. Youth

Auth., 217 F.3d 1104, 1110 (9th Cir. 2000) (quoting Pavon v.
Swift Trans. Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999)).

“The

working environment must both subjectively and objectively be
perceived as abusive.”

Craig v. M&O Agencies, Inc., 496 F.3d

1047 (9th Cir. 2007) (internal quotations omitted).

Objective

hostility is determined by examining the totality of the
circumstances, including the frequency of the alleged
discriminatory conduct, its severity, and whether it unreasonably
interfered with an employee’s work performance.

Id.; see also

Surrell v. California Water Serv. Co., 518 F.3d 1097, 1109 (9th
Cir. 2008).

Mere isolated incidents do not create a hostile work

environment; the hostility must be serious and pervasive.

14

Craig,

496 F.3d at 1056.
Under Hawaii law, a plaintiff must show:(1) he or she
was subjected to conduct of a racial or sexual nature, (2) that
was unwelcome, and (3) the conduct was severe or pervasive and
served the purpose of interfering with his or her work
performance or creating an intimidating, hostile, or offensive
work environment.

See Nelson v. Univ. of Hawaii, 97 Haw. 376,

390, 38 P.3d 95, 106 (2001).
Although the Second Amended Complaint does not
specifically refer to a hostile work environment, see Opp’n at 5
(admitting that Plaintiffs do not use the term in their
pleading), the court views the factual allegations as sufficient
to support a hostile work environment claim.

See Shipley v.

State of Hawaii, Department of Education, Civ. No. 05-00145
JMS/BMK, 2007 WL 188029, at *8 (D. Haw. Jan. 22, 2007) (finding
plaintiff adequately alleged facts for a hostile work environment
claim although not explicitly included in the complaint).
Plaintiffs allege that their supervisors and fellow
officers failed to provide requested protective cover or backup
in the field and at police stations when Plaintiffs had to deal
with arrested subjects.

See Second Am. Compl. ¶ 24.

They allege

that these refusals reflected animus based on race and sex.
id. ¶ 27.

See

Plaintiffs’ allegation that these failures put them

“at risk of bodily harm and even death” suggests the severity and

15

pervasiveness of the alleged activities.

See id. ¶ 3.

See also

Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996) (refusal to
provide backup to the plaintiff prison guard supported a hostile
work environment claim based on race); Olsen v. Ammons, 2009 WL
4573581, at *5-6 (M.D. Pa. Dec. 1, 2009) (“[R]efusing to provide
a fellow police officer with backup because of gender would
support a hostile work environment claim because it would
indicate severe or pervasive gender discrimination.”); Kramarski
v. Village of Orland Park, No. 00 C 2487, 2002 WL 1827637, at *9
(N.D. Ill. Aug. 9, 2002) (denying plaintiff backup and blocking
her radio transmissions were sufficiently pervasive to create a
hostile environment).
Accordingly, Plaintiffs’ claims in Counts I and III
under Title VII and section 378-2 against the City survive this
motion to dismiss.
1.

Count III (Section 378-2) Against Individual
Defendants)

Count III also asserts employment discrimination in
violation of section 378-2 against individual Defendants.
Plaintiffs have agreed to dismiss the section 378-2 claim against
Defendants Correa, Kealoha, Tamashiro, Simmons, McEntire, Dolera,
Serrao, and Loo.

See Opp’n at 7.

Defendants do not appear to

dispute the sufficiency of the section 378-2 claim against
Sergeant Fernandez or Lieutenant Kwon.

See Mot. at 12.

This

leaves for this court’s review the section 378-2 claims against
16

Defendants Sergeant Tanaka and Officer Kashimoto.1
To the extent Plaintiffs assert claims against
individual Defendants under subsections (1) and (2) of section
378-2, this court also dismisses these claims against individual
Defendants.
subsections.

There is no individual liability under these
Lum v. Kauai County Council, 358 Fed. Appx. 860,

862 (9th Cir. 2009) (unpublished opinion holding that there is no
individual liability under sections 378-2(1)and 378-2(2))
(affirming 2007 WL 3408003 (D. Haw. 2007)).
The court reads the Second Amended Complaint as having
sufficient factual allegations to state claims against Sergeant
Tanaka and Officer Kashimoto under subsection (3) of section 3782, which prohibits the aiding and abetting of prohibited
discrimination.

In paragraph 50 of the Second Amended Complaint,

Plaintiffs say that Defendants were “aiding” and “abetting”
pervasive and unlawful discrimination and harassment.
Am. Compl. ¶ 50.

See Second

More specifically, Plaintiffs allege that

Officer Kashimoto’s “deliberate and/or malicious” failure to

1

At the hearing, Plaintiffs attempted to reassert Count III
against some Defendants they had already dismissed in their
briefing. The court holds Plaintiffs to the dismissal stated in
the Opposition. To the extent Plaintiffs have voluntarily
dismissed certain claims against certain Defendants, those claims
cannot be reasserted against those Defendants later. If
Plaintiffs could voluntarily dismiss claims against certain
Defendants when facing motions to dismiss, then reassert those
claims against the same Defendants later, any order disposing of
a motion to dismiss would become meaningless, and motions would
be rendered a waste of time.
17

provide backup or to actively assist at the scene of a stabbing
put Sergeant Dowkin in danger of bodily harm.

See id. ¶ 33(VVV).

Also, Plaintiffs allege that Officer Kashimoto was “perpetrating
discrimination against [Bennett-Bagorio] in conspiracy with her
Defendant supervisors.”

See id. ¶ 33(JJJ).

Officer Kashimoto

was allegedly “directly responsible” for not providing Officer
Delgadillo with requested backup.

See id. ¶ 33(TT).

With respect to Sergeant Tanaka, Plaintiffs further
allege that he knowingly failed to provide cover to Officer
Bennett-Bagorio when she entered a local bar in response to a
reported altercation and further failed to order his subordinates
to provide backup.

See id. ¶ 33(WWW).

Officer Bennett-Bagorio

says she was physically attacked by a suspected male felon and
suffered a serious back injury as a result.

See id.

Sergeant

Dowkin and Officer Delgadillo allege numerous times when they
were not provided requested backup and Sergeant Tanaka was on
duty.

See id. ¶¶ 33(EE), (FF).

Sergeant Tanaka allegedly told

Officer Delgadillo that mistreatment was directed at him because
he was Mexican.

See id. ¶ 33(GG).

As pled, the allegations support section 378-2(3)
claims against Sergeant Tanaka and Officer Kashimoto.
Accordingly, the section 378-2(3) claim proceeds for further
adjudication against Sergeant Tanaka, Officer Kashimoto, Sergeant
Fernandez, and Lieutenant Kwon.

18

B.

Count II (Title VI)

Defendants do not move to dismiss Count II, which
alleges a Title VI violation.

This court earlier declined to

dismiss the Title VI claim asserted in the First Amended
Complaint.

This claim remains for further adjudication.
C.

Count IV (Negligent Training, Supervision,
Retention, Failure to Report and Investigate)

Defendants seek dismissal of Count IV, which appears to
be a wide-ranging negligence claim.

Plaintiffs assert Count IV

against Defendants City, Kwon, Fernandez, Tanaka, and Kashimoto.
1.

Negligent Training, Retention, Failure to
Report, and Investigate

Defendants Kwon, Fernandez, Tanaka, and Kashimoto seek
dismissal of Count IV, arguing that the Second Amended Complaint
fails to apprise them of what specific actions individual
Defendants took or did not take that indicate a failure to train
or supervise.

See Mot. at 15.

In its previous Order, this court ruled that a basic
negligence claim was sufficiently alleged.

See Order at 19-20.

The court noted that, to survive a motion to dismiss, Plaintiffs
had to allege facts supporting both negligence and malice as
required by state law for negligence claims against public
officials, but that no malice was alleged against Defendants
other than Kwon and Fernandez.

See Medeiros v. Kondo, 55 Haw.

499, 522 P.2d 1269, 1271-72 (Haw. 1974) (“We feel strongly that

19

if an official in exercising his authority is motivated by
malice, and not by an otherwise proper purpose, then he should
not escape liability for the injuries he causes.”); Kajiya v.
Dep't of Water Supply, 2 Haw. App. 221, 629 P.2d 635, 640 (Haw.
Ct. App. 1981).

Accordingly, the court allowed the negligence

claim to proceed against only Lieutenant Kwon and Sergeant
Fernandez.

See Order at 21.

Plaintiffs now plead Count IV anew,

seeking to expand it to include other Defendants.

Having already

decided the negligence claim against Sergeant Fernandez and
Lieutenant Kwon, the court now proceeds to analyze Count IV
against Defendants Sergeant Tanaka and Officer Kashimoto.
Plaintiffs adequately allege malicious acts by Sergeant
Tanaka and Officer Kashimoto.

As explained in the analysis of

Count III, Plaintiffs claim that Sergeant Tanaka, allegedly the
supervising officer on a matter, deliberately failed to provide
backup to Bennett-Bagorio, who was responding to a report of an
altercation at a local bar and ended up with a serious back
injury.

See Second Am. Compl. ¶ 33(WWW).

Sergeant Tanaka

allegedly deliberately and/or maliciously failed to order his
subordinate officers not to provide cover to Officer BennettBagorio.

See id.
Similarly, Officer Kashimoto allegedly failed to

provide prompt backup at the scene of a stabbing to Sergeant
Dowkin, who ended up hospitalized for a heart ailment for the

20

first time in his life.

See id. ¶¶ 33(VVV) and (OOO).

Officer

Kashimoto was also allegedly “directly responsible” for not
providing requested backup to Officer Delgadillo, see id.
¶ 33(TT), and “deliberately called off” Officer Bennett-Bagorio’s
request for backup.

See id. ¶ 33(GGG).

Notwithstanding the adequate allegations of malice,
Count IV remains difficult to decipher because it lacks
specificity with respect to which Defendant is being sued for
each type of negligence.

For example, although Count IV alleges

negligent training, it does not allege that each individual
Defendant had a duty to train others.

At the hearing, the court

asked Plaintiffs which forms of negligence were asserted against
which Defendants.

Plaintiffs stated that the negligent training,

retention, reporting, and investigating claims were asserted
against all named Defendants in Count IV except for Officer
Kashimoto, against whom only a negligent reporting claim was
alleged.

The Second Amended Complaint does not make this clear.

While this court, having received this clarification, does not
dismiss the negligent retention, failure to report, and failure
to investigate claims against Officer Kashimoto, Sergeant Tanaka,
Lieutenant Kwon, Sergeant Fernandez, or the City, it is far from
an ideal statement of a claim.

The negligent training claim

against Kashimoto is dismissed, but remains pending against
Tanaka, Kwon, Fernandez, and the City.

21

2.

Negligent Supervision

To the extent Plaintiffs assert a negligent supervision
claim against any Defendant, the court dismisses that claim.
To state a claim for negligent supervision, a plaintiff
must allege that the employee was acting outside the scope of his
or her employment.

See Pulawa v. GTE Hawaiian Tel., 143 P.3d

1205, 1220 (Haw. 2006).

In the Second Amended Complaint,

Plaintiffs allege that all individually named Defendants were
acting “in the course and scope of his employment” at all
relevant times.

See Second Am. Compl. ¶¶ 8-20.

This allegation

leaves no one identified as having acted outside the scope of
employment and therefore appears to negate any negligent
supervision claim.

Accordingly, the court dismisses the

negligent supervision claim against the City and individual
Defendants.
D.

Count V (Intentional Infliction of Emotional
Distress)

Defendants seek dismissal of the intentional infliction
of emotional distress (“IIED”) claim against all Defendants
except Lieutenant Kwon and Sergeant Fernandez.

See Mot. at 16.

Plaintiffs have agreed to dismiss the IIED claim against
Defendants Correa, Kealoha, Tamashiro, Simmons, McEntire, Dolera,
Serrao, and Loo.

See Opp’n at 8.

That means that, putting Kwon

and Fernandez aside, Plaintiffs are now asserting a new IIED
claim against only Defendants Kashimoto, Tanaka, and Axt.
22

In

their brief, Plaintiffs indicated that they intend to file a
Motion to Amend and a Third Amended Complaint to include factual
allegations sufficient to a support a cause of action for IIED
against Defendants Kashimoto, Tanaka, and Fernandez.
at 9.

See Opp’n

However, at the hearing, Plaintiffs stated that they were

not conceding that the IIED claim against these Defendants was
insufficiently pled in the Second Amended Complaint.
Accordingly, the court analyzes the IIED claim against Defendants
Tanaka, Kashimoto, and Axt.
“Under Hawaii law, the elements of IIED are ‘(1) that
the act allegedly causing the harm was intentional or reckless,
(2) that the act was outrageous, and (3) that the act caused (4)
extreme emotional distress to another.’”

Enoka v. AIG Haw. Ins.

Co., 109 Haw. 537, 559, 128 P.3d 850, 872 (2006) (quoting Hac v.
Univ. of Haw., 102 Haw. 92, 106-07, 73 P.3d 46, 60–61 (2003)).
The Hawaii Supreme Court defines the term “outrageous” as
“‘without just cause or excuse and beyond all bounds of
decency.’”

Enoka, 109 Haw. at 559 (quoting Lee v. Aiu, 85 Haw.

19, 34 n.12, 936 P.2d 655, 670 n.12 (1997)).

“Moreover, ‘extreme

emotional distress’ constitutes, inter alia, mental suffering,
mental anguish, nervous shock, and other ‘highly unpleasant
mental reactions.’”
1.

Id. (quoting Hac, 102 Haw. at 106).
Sergeant Tanaka

Sergeant Dowkin and Officer Delgadillo allege that,

23

while on duty, Sergeant Tanaka failed to provide requested backup
for a traffic stop and arrest.

See Second Am. Compl. ¶¶ 33(EE),

33(FF).
Sergeant Tanaka allegedly told Officer Delgadillo that
mistreatment was directed at him because he was Mexican.
¶ 33(GG).

See id.

Furthermore, Sergeant Tanaka allegedly told Officer

Bennett-Bagorio that he hated that “fuckin’ Rico [Officer
Delgadillo].”

See id. ¶ 33(HHH).

Officer Bennett-Bagorio

allegedly suffered a serious back injury because Sergeant Tanaka
failed to provide backup when she entered a local bar in response
to a reported altercation.

See id. ¶ 33(WWW).

Sergeant Tanaka

was allegedly the supervising officer on scene, and allegedly
deliberately and/or maliciously failed to order his subordinate
officers to provide backup.

See id.

All three Plaintiffs allege that these events caused
them “to suffer anxiety, severe and emotional and physical
distress and suffering.”

See id. ¶ 60. These allegations

sufficiently support their intentional infliction of emotional
distress claims against Sergeant Tanaka.
2.

Officer Kashimoto

On July 30, 2008, Sergeant Dowkin was allegedly not
provided with requested backup while Officer Kashimoto was on
duty.

See id. ¶ 33(KK).

On October 11, 2010, Officer Kashimoto

allegedly failed to provide prompt backup to Sergeant Dowkin at

24

the scene of a stabbing.

See id. ¶ 33(VVV).

These events

allegedly caused Sergeant Dowkin to be hospitalized for a heart
ailment for the first time in his life.

See id. ¶ 33(OOO).

On August 15, 2008, Officer Kashimoto was allegedly
“directly responsible” for not providing requested backup to
Officer Delgadillo.

See id. ¶ 33(TT).

Officer Kashimoto

allegedly often referred to Officer Delgadillo as a “big-nosed
Mexican” and to Sergeant Dowkin as “popolo” (the Hawaiian word
for a dark-colored berry that is also used by some to refer to an
African-American).

See id.

On February 13, 2009, Officer Bennett-Bagorio also did
not receive requested backup because the “cover was deliberately
called off by Officer Kashimoto.”

See id. ¶ 33(GGG).

Officer

Bennett-Bagorio alleges that Officer Kashimoto was “perpetrating
discrimination against her in conspiracy with her Defendant
supervisors.”

See id. ¶ 33(JJJ).

All three Plaintiffs plead sufficient allegations to
support their intentional infliction of emotional distress claim
against Officer Kashimoto.
3.

Lieutenant Axt

The court also finds that Dowkin and Delgadillo plead
sufficient IIED allegations against Lieutenant Axt.

On January

8, 2008, Dowkin and Delgadillo allegedly met with Lieutenant Axt
to express their concerns about their physical safety and lack of

25

requested backup.

See id. ¶ 33(V).

After this meeting,

Plaintiffs allege that Axt failed to provide backup on multiple
occasions.

See id. ¶¶ 33(BB), (DD), (EE), (FF), (HH), (II),

(JJ), (LL); see id. ¶ 33(SSS).
sufficient to allege intent.

The court finds that this is

Furthermore, Plaintiffs allege that

Axt made sexist and racist comments.

See id. ¶ 33(PPP).

On

January 8, 2008, Lieutenant Axt allegedly informed Dowkin that he
would have to attend additional training because his presence as
an African-American officer was disruptive.

See id. ¶ 33(W).

Plaintiffs allege that Lieutenant Axt knew that such training
would reflect poorly on Dowkin’s police record and affect his
reputation, promotability, and finances.

See id.

The next day,

Dowkin was allegedly threatened again with such training if he
did not comply with “petty and arbitrary orders” that were not
applied to other officers.

See id. ¶ 33(X).

Plaintiffs allege

that Lieutenant Axt, as the supervisor of the DUI Team, held
Dowkin and Delgadillo to different standards.

See id. ¶ 33(U).

Dowkin and Delgadillo plead sufficient allegations for an IIED
claim against Lieutenant Axt.
All three Plaintiffs may proceed with their IIED claims
against Sergeant Tanaka and Officer Kashimoto, and Dowkin and
Delgadillo may proceed with their IIED claim against Axt.
E.

Count VI (Negligent Infliction of Emotional
Distress)

The elements of a claim for negligent infliction of
26

emotional distress (“NIED”) are: (1) that the defendant engaged
in negligent conduct; (2) that the plaintiff suffered serious
emotional distress; and (3) that such negligent conduct of the
defendant was a legal cause of the serious emotional distress.
Tran v.State Farm Mut. Automobile Ins. Co., 999 F. Supp. 1369,
1375 (D. Haw. 1998).

A cognizable claim for NIED under Hawaii

law also requires “physical injury to either a person or
property,” see Calleon v. Miyagi, 76 Haw. 310, 320, 876 F.2d 1278
(1994), or a mental illness, see Haw. Rev. Stat. § 663-8.9.
In the Second Amended Complaint, Dowkin and BennettBagorio assert an NIED claim against all Defendants.

Defendants

seek dismissal of the NIED claim against all Defendants except
Lieutenant Kwon and Sergeant Fernandez.

See Mot. at 16.

Plaintiffs agree to dismiss this cause of action against all
Defendants except Lieutenant Kwon, Sergeant Fernandez, Sergeant
Tanaka, and the City.

See Opp’n at 9.

As established in the

court’s previous Order, Sergeant Dowkin’s NIED claim against
Lieutenant Kwon, Sergeant Fernandez, and the City may proceed
given allegations of a predicate physical injury.

See Order at

23.

The court now turns to Bennett-Bagorio’s NIED claim in Count

VI.

See Opp’n at 9.
The court previously dismissed Officer Bennett-

Bagorio’s NIED claim because she had not alleged a predicate
physical injury or mental illness.

27

See Order at 23.

In the

Second Amended Complaint, Officer Bennett-Bagorio alleges a
physical injury.

She alleges that, on October 18, 2010, she

suffered a serious back injury because she did not receive cover
from Sergeant Tanaka.

See Second Am. Compl. ¶ 33(WWW).

Officer

Bennett-Bagorio was allegedly attacked by a suspected male felon
when responding to a report of an altercation at a local bar.
See id.

Sergeant Tanaka was allegedly the supervising officer on

the scene and allegedly deliberately and/or maliciously failed to
order his subordinate officers to provide cover to Officer
Bennett-Bagorio.

See id.

The court permits Officer Bennett-

Bagorio’s NIED claim against Sergeant Tanaka and the City to
proceed.
F.

Count VII (42 U.S.C. § 1983)

In Count VII, Plaintiffs bring § 1983 claims, asserting
violations of equal protection and due process under the
Fourteenth Amendment and of freedom of speech under the First
Amendment.

See Second Am. Compl. ¶¶ 70-77.2

2

This claim is

Plaintiffs misstate this court’s prior ruling on the
§ 1983 claim. Plaintiffs claim that the court has already ruled
that the First Amended Complaint stated a claim against all
Defendants based on the alleged violation of Plaintiffs’ due
process, equal protection, and free speech rights. See Opp’n at
10. This court made no such ruling. Instead, in denying
Defendants’ earlier motion to dismiss the § 1983 claim, the court
addressed only the argument that such a claim is impermissible if
entirely premised on conduct actionable under Title VII.
See Order at 12. The court rejected that argument, but as other
grounds were not advanced with respect to the § 1983 claim
against individual Defendants, the court did not otherwise
analyze that claim.
28

asserted only against the individual Defendants, who, Plaintiffs
allege, denied them due process and equal protection based on
Sergeant Dowkin and Officer Delgadillo’s race and Officer
Bennett-Bagorio’s gender.

See Second Am. Compl. ¶ 75.

They also

allege retaliation by Defendants after Plaintiffs complained
about and opposed unlawful discrimination.

See id.

Plaintiffs

agree to dismiss this cause of action against Defendants Correa
and Kealoha.

See Opp’n at 10.

The court proceeds to analyze the

§ 1983 claim against the remaining individual Defendants.
Plaintiffs seek to enforce their constitutional rights
via 42 U.S.C. § 1983, which provides an avenue for vindicating
deprivations of rights “secured by the Constitution or laws of
the United States.”

Cal. Alliance of Child & Family Servs. v.

Allenby, 589 F.3d 1017, 1025 n.2 (9th Cir. 2009).

Section 1983

provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be
subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity . . . .
42 U.S.C. § 1983.
“Section 1983 imposes two essential proof requirements
upon a claimant: 1) that a person acting under color of state law

29

committed the conduct at issue, and 2) that the conduct deprived
the claimant of some right, privilege or immunity protected by
the Constitution or laws of the United States.”

Long v. Cnty. of

L.A., 442 F.3d 1178, 1185 (9th Cir. 2006).
Defendants argue that they are entitled to qualified
immunity with respect to the § 1983 claim.

Whether Defendants

are or are not qualifiedly immune is not a matter that this court
can determine on the present record.

Defendants have the burden

of establishing their defense of qualified immunity, and they
cite no law imposing on a plaintiff any requirement to allege a
means of overcoming qualified immunity.

While it is indeed

sometimes possible to discern that a defendant is immune based
solely on the allegations in a complaint, that is not so here.
The court therefore examines the § 1983 allegations to determine
whether they adequately state a claim, not whether they negate
qualified immunity.
With respect to the alleged due process violation, the
Second Amended Complaint does not indicate whether Plaintiffs are
asserting a substantive due process claim,3 a procedural due

3

For a plaintiff to adequately allege a violation of his
substantive due process rights under § 1983, he must allege that
the government deprived him of life, liberty, or property in a
way that “shocks the conscience” or “interferes with rights
implicit in the concept of ordered liberty.” See Nunez v. City
of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998).
30

process claim,4 or both.

At the hearing, Plaintiffs said they

were asserting a procedural due process violation in the form of
the lack of procedures to investigate discrimination and
retaliation.

They said they were alleging a substantive due

process violation based on the disparate treatment Plaintiffs
allegedly suffered in being forced to abide by certain rules and
regulations not forced on others.

They claimed that their

liberty interest was infringed on when they were denied a safe
environment and had to deal with the lack of procedure by the
City for investigating their claims and protecting them from
retaliation.

Even with these amplifications, the Second Amended

Complaint remains unclear as to which Defendant is being sued for
which alleged due process violation.
With respect to the alleged equal protection
violation, Plaintiffs said at the hearing that their equal
protection claim mirrors their Title VII claim.
Neither party briefed the issue of a First Amendment
violation.

Without here ruling on what First Amendment rights

Plaintiffs have, the court reminds the parties that not
everything a public employee says has First Amendment

4

To state a procedural due process claim under § 1983, a
plaintiff must allege “(1) a liberty or property interest
protected by the Constitution; (2) a deprivation of the interest
by the government; [and] (3) lack of process.” Portman v. County
of Santa Clara, 995 F.2d 898, 907 (9th Cir. 1993); see also Bd.
of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70
(1972); McRorie v. Shimoda, 795 F.2d 780, 786 (9th Cir. 1986).
31

protections.

See Garcetti v. Ceballos, 547 U.S. 410 (2006).

In the Opposition, Plaintiffs point to five paragraphs
of the Second Amended Complaint that they claim allege violations
of their constitutional rights.

See Opp’n at 10.

However,

Plaintiffs fail to specify which constitutional right is
addressed by which allegation.

At the hearing, Plaintiffs were

asked to more specifically connect constitutional rights with
factual allegations.

Plaintiffs claimed that Paragraphs 33(U),

33(EE), 33(GGG), and 33(OOO) allege violations of equal
protection.

The court cannot discern how some of these

paragraphs support an equal protection claim.

For example,

Paragraph 33(OOO) alleges a conspiracy between several officers
in rewriting Officer Delgadillo’s performance rating.
In support of their procedural due process claim,
Plaintiffs pointed to only paragraph 33(JJJ).

Paragraph 33(JJJ)

alleges that Captain Dolera disclosed the contents of Officer
Bennett-Bagorio’s discrimination and retaliation complaint to
Officer Kashimoto.

It remains unclear how all individual

Defendants have committed a procedural due process violation in
the form of this disclosure.
Plaintiffs failed entirely to point to any paragraph
supporting a substantive due process violation or a First
Amendment violation.

Moreover, the five highlighted paragraphs

name only nine of the eleven individual Defendants named in the

32

§ 1983 claim.

No allegations regarding Lieutenants Serrao and

Kwon were identified.
Because the § 1983 claim is extremely vague and
confusing, it is dismissed.
G.

Count VIII (Civil Conspiracy)

In Count VIII of the Second Amended Complaint,
Plaintiffs assert a claim for civil conspiracy.

This court

previously held that the conspiracy charge was adequately pled.
See Order at 26-27.

Defendants now complain that the Second

Amended Complaint fails to properly allege which Defendants took
what specific act in connection with the alleged conspiracy.
Mot. at 18.

See

Defendants request dismissal of Count VIII against

all individual Defendants except Lieutenant Kwon and Sergeant
Fernandez.

As Plaintiffs do not address this argument in their

Opposition, they appear to have no objection.

On that ground,

the court dismisses Count VIII except with respect to Kwon and
Fernandez.
H.

Count IX (Temporary and Permanent Injunctive
Relief)

Count IX seeks injunctive relief for the “immediate and
irreparable harm” that will occur from the alleged retaliation
from their unlawful discrimination complaints.
Compl. at 62.

See Second Am.

The court follows the well-settled rule that a

claim for “injunctive relief” standing alone is not a cause of
action.

See, e.g., Henke v. Arco Midcon, L.L.C., 750 F. Supp. 2d
33

1052, 1059-60 (E.D. Mo. 2010) (“Injunctive relief, however, is a
remedy, not an independent cause of action.”); Jensen v. Quality
Loan Serv. Corp., 702 F. Supp. 2d 1183, 1201 (E.D. Cal. 2010) (“A
request for injunctive relief by itself does not state a cause of
action” (quotation marks and citation omitted)); Plan Pros, Inc.
v. Zych, 2009 WL 928867, at *2 (D. Neb. Mar. 31, 2009) (“no
independent cause of action for injunction exists”); Motley v.
Homecomings Fin., LLC, 557 F. Supp. 2d 1005, 1014 (D. Minn. 2008)
(same).

Injunctive relief may be available if Plaintiffs are

entitled to such a remedy upon prevailing on an independent cause
of action.

Accordingly, the court dismisses Count IX in its

entirety.
V.

CONCLUSION.
For the foregoing reasons, the court grants the motion

to dismiss the section 378-2(1) and 378-2(2) claims in Count III
against all Defendants; the negligent supervision claim in Count
IV against all Defendants; the negligent training claim in Count
IV against Kashimoto; Count VII (§ 1983) in its entirety; the
conspiracy claim in Count VIII against all Defendants except Kwon
and Fernandez; and the injunctive relief claim in Count IX.
The motion is denied in all other respects.
Taking into account Plaintiffs’ voluntary dismissals of
certain claims against certain Defendants, this order leaves for
further adjudication the Title VII claim in Count I against the

34

City; Dowkin and Delgadillo’s Title VI claim in Count II against
the City; the section 378 claim in Count III against the City;
the section 378-2(3) claim in Count III against Kwon, Fernandez,
Tanaka and Kashimoto; the negligent retention, failure to report,
and failure to investigate claims in Count IV against Kashimoto,
Tanaka, Kwon, Fernandez, and the City; the negligent training
claims in Count IV against Tanaka, Kwon, Fernandez, and the City;
all three Plaintiffs’ IIED claims in Count V against Tanaka and
Kashimoto; Dowkin and Delgadillo’s IIED claims in Count V against
Axt; Dowkin’s NIED claim in Count VI against Kwon, Fernandez, and
the City; Bennett-Bagorio’s NIED claim in Count VI against Tanaka
and the City; and the conspiracy claim in Count VIII against Kwon
and Fernandez.
If Plaintiffs move for leave to file a Third Amended
Complaint, Plaintiffs should avoid the deficiencies in the Second
Amended Complaint.

The Second Amended Complaint often fails to

distinguish among Defendants as to alleged causes of action.

Any

further Amended Complaint must clearly state how each named
Defendant has injured which Plaintiff.

In other words,

Plaintiffs should explain, in clear and concise allegations, what
each Defendant did and how those specific facts create a
plausible claim for relief.

A complaint that fails to explain

which allegations are relevant to which Defendant is confusing.
This, in turn, “impose[s] unfair burdens on litigants and judges”

35

because it requires both to waste time formulating their own best
guesses of what the Plaintiffs may or may not have meant to
assert, risking substantial confusion if their understanding is
not equivalent to Plaintiffs’.

See McHenry v. Renne, 84 F.3d

1172, 1179-80 (9th Cir. 1996).

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 2, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Dowkin v. Honolulu Police Department, Civ. No. 10-00087 SOM/LEK; ORDER
PARTIALLY GRANTING AND PARTIALLY DENYING DEFENDANTS’ MOTION TO DISMISS SECOND
AMENDED COMPLAINT.

36